IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF ILLINOIS EASTERN DIVISION
June 11, 2012
LA PLAYITA CICERO, INC., ET AL. PLAINTIFFS,
TOWN OF CICERO,
The opinion of the court was delivered by: Judge Robert M. Dow, Jr.
MEMORANDUM OPINION AND ORDER
Before the Court is Defendant Town of Cicero's motion to dismiss  Plaintiffs' complaint pursuant Federal Rule of Civil Procedure 12(b)(6). Rather than challenging the sufficiency of Plaintiffs' factual allegations under 42 U.S.C. § 1983, however, Defendant presents the purely legal question whether this action is barred by the Illinois savings statute, 735 ILCS 5/13-217 (West 1994). For the reasons stated below, the motion  is granted.
The only facts relevant to the question presented here concern the procedural posture of the case.*fn1 In April 2007, Plaintiffs filed the claim set forth in the complaint in this matter as a counterclaim to Defendant's complaint for injunctive relief in Illinois state court. Defendant subsequently dismissed its complaint, leaving the counterclaim as an independent cause of action. In February 2009, the counterclaim was dismissed for want of prosecution. Several months later, Plaintiffs moved for relief from the dismissal pursuant to 735 ILCS 5/2-1401. The state court granted Plaintiffs' request in December 2009.
In April 2011, Plaintiffs' counterclaim was dismissed again for want of prosecution. This time, however, Plaintiffs moved to vacate the judgment immediately pursuant to 735 ILCS 5/2-1301. The state court granted Plaintiffs' request in May 2011.
In August 2011, Plaintiffs voluntarily dismissed the counterclaim. The
state court's order pursuant to the dismissal provided that the
parties "agree that [Plaintiffs] have the right to voluntarily dismiss
this action pursuant to 735 ILCS 5/2-1009." [10-1 at 15.] The order
also stated that Defendant "agrees to waive any arguments as to res
judicata that may be available under Hudson v. City of Chicago, 228
Ill. 2d 462 (2008), and expressly agrees that the acquiescence,
express reservation, and continuing or recurrent wrong exceptions to
the rule against claim splitting apply and do not bar the new action."
[10-1 at 15.] The order finally provided that Defendant "agree[s] that
the claims will be refiled in [federal court] and [Plaintiffs] will
file a motion to consolidate the new action with LaPlayita Cicero,
Inc. v. Town of Cicero, et al., Case No. 11-C-01702."*fn2
[10-1 at 16.]
Days later, Plaintiffs filed the counterclaim as a complaint in this Court. Defendant moved to dismiss the complaint pursuant to Rule 12(b)(6), arguing that the action is barred by the Illinois savings statute. See Jenkins v. Village of Maywood, 506 F.3d 622, 623 (7th Cir. 2007) ("[S]section 1983 actions are governed by the appropriate state statute of limitations and its corresponding tolling rules.").
The Illinois savings statute allows a plaintiff whose action is dismissed for want of prosecution or voluntarily dismissed to refile the action within one year of the entry of the dismissal order or within the remaining period of limitations, whichever is greater. 735 ILCS 5/13-217. The purpose of the statute is to "facilitat[e] the disposition of litigation on the merits and to avoid its frustration upon grounds unrelated to the merits." S.C. Vaughan Oil Co. v. Caldwell, Troutt & Alexander, 693 N.E.2d 338, 342 (Ill. 1998). At the same time, the Illinois Supreme Court has stressed that "section 13-217 permits one, and only one, refiling of a claim." Timberlake v. Illini Hosp., 676 N.E.2d 634, 637 (Ill. 1997). "No matter why the second dismissal took place, the statute does not give plaintiff the right to refile again." Id.
Here, the parties agree that Plaintiffs' second successful motion to vacate the state court's dismissal for want of prosecution-brought pursuant to 735 ILCS 5/2-1301-was not a refiling. [14 at 2.] The parties also agree that Plaintiffs' filing of the complaint currently before the Court was a refiling. [1 at 2.] The only issue is the significance of Plaintiffs' first successful motion to vacate the state court's dismissal for want of prosecution, which was brought pursuant to 735 ILCS 5/2-1401. If the § 2-1401 motion was a refiling, then the Illinois savings statute bars Plaintiffs' second refiling here.*fn3
Plaintiffs argue that the § 2-1401 petition was not a refiling because
Plaintiffs kept the same case number and judge assignment.*fn4
However, Illinois courts repeatedly have held that a §
2-1401 petition is the initial pleading in a new, independent cause of
action, not a continuation of the original action. See, e.g., Hanson
v. De Kalb Cnty. State's Attorney's Office, 909 N.E.2d 903, 907 (Ill.
App. Ct. 2009) (citing cases); Gas Power, Inc. v. Forsythe Gas Co.,
618 N.E.2d 959, 963 (Ill. App. Ct. 1993). Moreover, the Illinois
Supreme Court has classified refiling under § 13-217 and bringing a
petition under § 2-1401 as two options available to a plaintiff facing
a dismissal for want of prosecution, with the latter requiring a
plaintiff to meet a heavier burden for relief but available for a
longer period of time. See S.C. Vaughan Oil, 693 N.E.2d at 346.
Because Illinois courts hold that § 2-1401 petitions commence new
proceedings and analogize § 2-1401 petitions to § 13-217 refilings,
the Court concludes that the Illinois savings statute bars Plaintiffs'
second refiling here. See Timberlake, 676 N.E.2d at 637 (emphasizing
that plaintiffs are entitled to "one, and only one, refiling"). Simply
put, when the Circuit Court in Decemnber 2009 granted Plaintiff's §
2-1401 motion to vacate the February 2009 dismissal for want of
prosecution and reinstated Plaintiff's case, Plaintiffs availed
themselves on the one and only refiling permitted under Illinois law.
Plaintiffs' fallback position is that Defendant waived its savings statute argument, or should be judicially estopped from asserting it, based on its agreement concerning Plaintiffs' voluntary dismissal. In the state court's order entered contemporaneously with the voluntary dismissal, Defendant agreed (1) that Plaintiffs have the right to voluntarily dismiss the action; (2) to waive any arguments as to res judicata and claim splitting; and (3) that the case would be refiled in federal court. While the order explicitly mentioned res judicata and claim splitting, there is no mention of the Illinois savings statute. The Court therefore has no basis for finding (or inferring) of knowing waiver of Defendant's arguments under that statute, nor is Defendant's position here "clearly inconsistent" with its position in state court as reflected in the order cited above. See New Hampshire v. Maine, 532 U.S. 742, 750 (2001) (finding that, in general, judicial estoppel mandates "that a party's later position must be 'clearly inconsistent' with its earlier position").
For these reasons, Defendant's motion to dismiss  is granted.
Robert M. Dow, Jr. United States District Judge